United States District Court, S.D. Texas
MEMORANDUM AND RECOMMENDATION
Bray, United States Magistrate Judge
Manuel Alvarado has filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 challenging his conviction
for possession with intent to deliver a controlled substance.
(D.E. 1.) The court recommends that the petition be dismissed
with prejudice as time-barred.
February 3, 1998, Alvarado pleaded guilty in the 209th
District Court of Harris County, Texas, to possession with
intent to deliver more than 400 grams of cocaine. The
district court sentenced him to 45 years confinement in the
Texas Department of Criminal Justice and imposed a $100 fine.
(D.E. 16-3 at 37-38.)
court of appeals affirmed the district court's judgment.
Alvarado v. State, No. 14-98-00506 (Tex.
App.-Houston [14th Dist.] May 13, 1999) (D-E. 16-6 at 91-95).
Alvarado did not file a petition for discretionary review in
the Texas Court of Criminal Appeals.
filed a state application for writ of habeas corpus on April
5, 2000. (D.E. 16-6 at 7-22.) The Texas Court of Criminal
Appeals denied the! application without written order on the
findings of the trial court. (D.E. 16-6 at 2.) Alvarado filed
three more applications: on November 30, 2004; November 30,
2008; and May 30, 2018. All three were dismissed as
subsequent applications. Alvarado filed this federal habeas
corpus petition on September 18, 2018.
sets a one-year limitations period for federal habeas
petitions. See 28 U.S.C. § 2244(d). The statute
(d)(i) A l-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation 1 period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
: (D) the date on which the factual predicate of
the claim I or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d)(i)-(2).
Alvarado challenges a state-court conviction, the limitations
period began to run on "the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review." 28
U.S.C. § 2244(d)(1)(A). Alvarado's conviction became
final on June 14, 1999, when his time to file a petition for
discretionary review expired. See Tex R. App. P.
68.2(a); Tex.R.App.P. 4.1(a). Absent tolling, the limitations
period would expire one year later, on June 14, 2000.
28 U.S.C. § 2244(d)(2), the time during which a
"properly filed application for State post-conviction or
other collateral review" is pending does not count
toward the one-year limitations period. A state habeas
petition is "pending" for purposes of tolling under
§ 2244(d)(2) on the day it is filed through and